Surendra Singh @APPELLANT@Hash Smt. Sulochana

These writ petitions under Articles 226 & 227 of the Constitution of India have been preferred, claiming, in sum and substance, the following

reliefs:-

“It is, therefore, humbly prayed that order dated 19.03.2015 annexure 11 passed by the learned Trial Court in the Civil Original Suit No.110/2008

(Surendra Singh VS. Sulochana) pending before Additional District Judge No.3, Jodhpur may kindly be quashed and set aside.

Application filed by the petitioner-plaintiff under Section 151 CPC dated 26.02.2015 may kindly be allowed and original agreement to sale be return to

the petitioner-plaintiff.

Any other appropriate writ, order or direction which this Hon’ble Court may deem just and proper in the facts and circumstances of the case may

kindly be passed in favour of the petitioner.â€​

Since the chronology of events and the cause of action in both the writ petitions is common, therefore, they have been heard together and are being

decided by this common order.

Learned counsel for the petitioner states that the petitioner-plaintiff filed a suit for specific performance of contract and perpetual injunction against

the respondent-defendant on 10.10.2008. The contention in the suit was that on 24.04.2008, an oral agreement was reached between the parties, and

accordingly, an agreement to sale was executed on 25.04.2008. The respondent-defendant denied the averments, and also refuted the factum of

execution of the agreement to sale.

The respondent-defendant filed an application under Section 35 of the Rajasthan Stamp Act before the learned trial court stating therein that the

aforementioned agreement to sale dated 25.04.2008 was drawn up only on Rs.100/- stamp paper, and thus, the same being inadequately stamped, as

per Section 35 of the Rajasthan Stamp Act, is inadmissible in evidence, and could be kept in part ‘D’ of the paper book. The said application

filed by the respondent-defendant was allowed by the learned trial court, and thus, the said document was ordered to be kept in Part ‘D’ of the

paper-book vide order dated 17.02.2010.

In the connected writ petition bearing S.B.Civil Writ Petition No.9537/2010, the aforesaid order dated 17.02.2010 passed by the learned trial court

has been put to challenge.

Subsequently, the petitioner-plaintiff filed an application under Section 39A of the Stamp Act on 16.03.2010, which was dismissed by the learned

trial court on 14.07.2010.

Later on, the petitioner moved another application on 26.02.2015 praying for return of the original agreement to sale, so that the impounding of the

said document dated 25.04.2008 could be done. However, the said application was also dismissed by the learned trial court vide order dated

19.03.2015.

The subject matter of challenge in the instant writ petition being S.B.Civil Writ Petition No.4671/2015 is the aforementioned order dated 19.03.2015

passed by the learned trial court.

Learned counsel for the petitioner states that in all circumstances, the Stamp Act required the learned court below to have allowed the

impounding of the document in question, in light of Section 39 read with Section 37 of the Stamp Act.

Learned counsel for the petitioner, in order to substantiate his submissions, has relied upon the judgment rendered by this Hon’ble Court in

Indralal & Anr. Vs. Saligram & Anr. reported in 2011(2) RRT 948, the relevant portion of which, reads as under :-

“ 12. Section 39 of the Act mandates that no instrument chargeable with a duty under the Act shall be admitted in evidence for any purpose by any

persons having by law or consent of the parties authority to receive evidence shall be acted upon registered or authenticated by any such person or by

any public officer unless such instrument is duly stamped. However, by virtue of proviso to Sec. 39 subject to all just exception, the instrument can be

admitted in evidence on the duty with which same is chargeable or in case of instrument insufficient stamped, the amount required to make up such

duty and a penalty of Rs. 100 or ten times of the amount of deficient portions thereof, whichever is higher.

Further, Sec. 42 which prescribes theprocedure to deal with the impounded instrument provides that when the person impounding instrument

u/Sec. 37 has by law or consent of the parties authority to receive evidence admits such instrument in evidence upon payment of penalty as provided

by Sec. 39 or the duty as provided by Sec. 41 shall send to the Collector an authenticated copy of the instrument together with the certificate in

writing, stating the amount of duty and penalty levied in respect thereof and shall sent such amount to the Collector or to such a person appointed in

this behalf. As per provisions of sub-sec. (2) of Sec. 41, in all other case, the instrument impounded shall be sent in original to the Collector. However,

as per proviso to sub-sec. (2) of Section 42, a person who produce the instrument, or any party interested is prepared to pay the cost of preparing a

copy of the instrument then only such authenticated copy shall be sent to the Collector and then the Collector shall take action on the authenticated

copy as if it were instrument original.

A conjoint reading of provisions of Sec.39 & 42 of the Act makes it abundantly clear that if the petitioners/plaintiffs are ready and willing to remit

the amount of deficient stamp duty and penalty as provided by proviso to Sec. 39 of deficient stamp duty and penalty as provided by proviso to Sec. 39

of the Act then, on payment of such duty and penalty, the document has to be admitted in evidence by the Court and only an authenticated copy

thereof alongwith a certificate in writing stating the amount of duty and penalty levied and such amount recovered is required to be sent to the

Collector (Stamp).

Thus, on the facts and in thecircumstances of the case, in considered opinion of this Court, the Trial Court has seriously erred in refusing to refer

the document to the Collector (Stamp) for determination of the deficient stamp duty and the penalty payable solely on the ground that the

petitioners/plaintiffs have not expressed their readiness and willingness to pay the deficient stamp duty and penalty. However, in view of the provisions

of Sec. 39(1) of the Act, a document not duly stamped cannot be admitted in evidence unless the duty with which same is chargeable or the deficient

duty and the penalty as determined by the Collector (Stamp) under the provisions of Sec. 37 or in terms as provided by proviso to Sec. 39, is duly paid.

For the aforementioned reasons, theorder impugned passed by the Court is not sustainable in the eye of law and same deserves to be set aside.

The matter deserves to be remanded to the Court below for consideration afresh in light of the position of law discussed above.â€​

Per contra, learned counsel for the respondent- defendant has refuted the aforesaid submissions made on behalf of the petitioner-plaintiff on the

ground that the petitioner has missed the bus, as on the first occasion itself, the petitionerplaintiff could have offered impounding of the document in

question; but since he had not done so at the appropriate stage, therefore, now, it is not open for him to pray for impounding of the document in

question at this belated stage.

After hearing learned counsel for the parties as well as perusing the record of the case, and seeing the precedent law cited at the Bar by

learned counsel for the petitioner, as also on a conjoint reading of the provisions of Sections 37, 39 and 42 of the Stamp Act, this Court finds that

it is abundantly clear that if the petitioner was willing to pay the stamp duty, the learned court below ought to have sent the document to the

Collector (Stamps) for determination of the deficit stamp duty and the penalty payable, in terms of the provisions of Section 39(1) of the Stamp Act, as

the document being inadequately stamped, could be admitted only after payment of the sufficient duty, in accordance with the provisions of Section 37

of the Stamp Act.

In the above backdrop, the writ petitions are allowed and the impugned order dated 19.03.2015 (Annexure-11 of writ petition No.4671/2015) and

the orders dated 14.07.2010 (Annexure-11 of writ petition No.9537/2010) and 17.02.2010 (Annexure-6 of writ petition No.9537/2010) are quashed

and set aside, and the learned court below is directed to send the document in question to the Collector (Stamps) to be impounded and also for

payment of sufficient stamp duty, in accordance with law. If such document is impounded and sufficient stamp duty is paid by the petitioner, the law

shall take its own course.